Opinion of the European Committee of the Regions — Local and regional authorities and the multilevel protection of the rule of law and fundamental rights in the EU
Date: 2015-02-12
Institutions: Commission for Citizenship, Governance, Institutional and External Affairs, European Committee of the Regions
Subjects: EU Member State, democracy, human rights, rule of law








C_2015140EN.01003201.xml










28.4.2015   


EN


Official Journal of the European Union


C 140/32





Opinion of the European Committee of the Regions — Local and regional authorities and the multilevel protection of the rule of law and fundamental rights in the EU
(2015/C 140/07)













Rapporteur



:


Luc Van den Brande (BE/EPP), Chairman of the Flemish-European Liaison Agency





Reference document



:


A new EU Framework to strengthen the Rule of Law
COM(2014) 158 final








I.   POLICY RECOMMENDATIONS

THE EUROPEAN COMMITTEE OF THE REGIONS


The principles of the rule of law, MLG and the European Commission's communication










1.


takes the view that democracy, human rights and the rule of law are the three fundamental pillars on which any legal system — whatever its shape and form — must be founded. Democracy is a ‘collective right’, and human rights are inalienable individual rights that must be safeguarded in all circumstances, even if the democracy itself is not complete or perfect. The principles of the rule of law and resultant practices are essential for giving concrete form to democracy and safeguarding human rights. Therefore wholeheartedly welcomes the Commission proposal to set up a framework to protect the rule of law in the EU which, as a basis for mutual trust between the Member States, and between them and EU citizens, is essential for European integration. A common framework of this kind is an asset, not only for the Member States but also for the local and regional authorities, as in practice the latter bear much of the responsibility for the implementation of fundamental rights and freedoms;












2.


points out that human rights, as fundamental rights connected with respect for people's dignity as individuals, take precedence over any institutional structures and, in essence, precede them;












3.


notes that, although there is no universal definition of the rule of law, there is a European legal tradition regarding this central concept, it is founded on three principles: (1) the legal obligations of all citizens, and enforcement thereof, should be based on law, and not dependent on an arbitrary or unilateral decision by the executive or on any discretionary power; (2) disputes between citizens and the executive should be resolved pursuant to ordinary legislation by an independent, neutral judiciary; and (3) citizens' fundamental rights (freedom of the individual, freedom of opinion, freedom of association, etc.) must be respected and clearly defined and based on clear basic legislation and not dependent on vague constitutional concepts, declarations or guarantees or arbitrary interpretations. The scope of these principles is twofold: firstly, governments should exercise their powers in line with published laws and regulations that are written in clear language, are based on solid legal foundations and are implemented fairly and openly; and secondly, governments should comply with their Constitution and the laws to which they are subject;












4.


feels that the important principle of subsidiarity (Article 5(3) of the TEU) should likewise serve as a foundation and guide when implementing the multilevel governance (MLG) concept to the protection of human rights;












5.


points out that, since their adoption, the European Convention on Human Rights and the Charter of Fundamental Rights of the EU, as the most advanced framework so far available in this area, have formed a binding foundation for the Union itself, for all Member States and for all levels of government, on which the principles of the rule of law and the implementation of those principles must be based;












6.


notes that the concept of MLG, as developed in the EU and also in the area covered by the Council of Europe, has been inspired by the fact that there has been, and continues to be, a much-needed development in governance within the EU, from a ‘top down’ model towards a more inclusive one that combines both ‘bottom-up’ and ‘top-down’ approaches and takes account of the two dimensions of subsidiarity: the ‘vertical’ dimension of boosting the involvement, shared responsibility and partnership of local and regional elected representatives, and the ‘horizontal’ dimension of ensuring that other stakeholders (socio- economic, educational, health, cultural) in society are given, and take, a share of responsibility in all fields of policy. MLG includes multi-stakeholder and multi-level governance. The day-to-day policy of local and regional authorities is affected by events and by actions and influences on national and European level which in many areas determine scope for action on the entire continent, and ultimately throughout the whole world. The rule of law operates also at different levels in the European Union and must therefore be protected in the interaction between the various levels. A policy of equal opportunities, and ultimately of social integration, takes account of the realities of globalisation and the challenges they bring in terms of employment opportunities and access to the facilities provided by the welfare state. Each national system has its own history and its own model, but we are moving towards the definition of transnational quality requirements, ultimately a European area of fundamental rights, including also social rights, will emerge, founded on multilevel governance and horizontal interconnections;












7.


feels that multi-level governance makes it possible to address a possible threat of the rule of law in a concrete situation and compensate for a number of shortcomings, including a lack of information, capacity, financial resources, administrative options and political impact by involving local and regional authorities in the surveillance and implementation of the principles of the rule of law in the EU. It also results in a more participatory democracy, greater transparency and accountability and gives the public a more prominent position. Protecting the rule of law is thus a way of bringing Europe closer to the citizens and vice versa — all with the aim, as set out in the White Paper on multilevel governance, of achieving ‘coordinated [institutional] action by the European Union, the Member States and local and regional authorities, based on partnership and aimed at drawing up and implementing EU policies’;












8.


points out that this concept has gradually been taking shape starting from the 2009 White Paper on MLG, as can be seen from our follow-up opinion — adopted by the European Committee of the Regions in 2012 — and from the Ateliers we have held, the scoreboard we created, and the MLG Charter we published very recently. Quite apart from the fact that this concept is making more and more headway in a variety of policy areas and is even being applied by various partners, one of its initial results can be seen in the general provisions and subsequent code of conduct for the European Structural and Investment Funds;












9.


notes that the Commission communication specifically states that the rule of law is the backbone of any modern democracy, and that it is one of the founding principles stemming from the common constitutional traditions of all the Member States of the EU and, as such, one of the main values upon which the Union is based as an area of freedom, security and justice (Article 2 of the TEU and preambles to the Treaty and the Charter of Fundamental Rights of the European Union). The aim of the proposed framework is to deal with future threats to the rule of law before the requirements allowing for the activation of the mechanisms set out in Article 7 of the TEU are met and come into effect, without prejudice to the existing infringement proceedings under Article 258 of the TFEU;












10.


notes that the new legal framework thus introduces a horizontal, transnational approach for instances where the EU's fabric of shared values is put at risk by the actions of State actors and current infringement proceedings may not always provide a solution. This means that it is necessary to strengthen the rule of law as a key shared value of the EU in order to achieve the objectives of protecting fundamental values, of which the protection of fundamental rights is an essential component;












11.


feels that the new framework, which follows a three-stage process, should fill a gap and create possibilities for the EU institutions to assess the rule of law, and eventually react when a Member State is at risk of creating a systemic threat to the rule of law through its own action. For this reason, the new mechanism foresees three steps: (1) an objective and careful assessment of the situation in the Member State concerned, (2) recommendations for immediate and concrete actions to prevent threats to the rule of law, unless the issue has since been resolved satisfactorily, and (3) monitoring the action taken by the Member State concerned to follow up on the recommendation made to it. In this procedure which is based on dialogue with the Member State concerned, it is of outmost importance to involve the different levels of governance as early as possible, including the local and regional levels, as well as civil society;






Strengthening protection of fundamental rights: a new and innovative MLG framework for the EU










12.


points out that local and regional authorities (LRAs) are on the front line, directly facing the challenges and problems that may directly affect rule of law procedures and thus the enforceability of certain fundamental rights arising from day to day in many fields — economic problems, unemployment, the environment and climate change, to name but a few. The special role of the LRAs comes also from their expertise, which allows them to identify possible systemic threats to the rule of law at an early stage but also from the fact that they are results-oriented — something that European policy must also constantly keep in mind. This is particularly true in a globalised world where migration and mobility have given rise to new intercultural relations and a pluralistic society with diverse values and religions — which is at its most tangible in local communities. Results on protection of the rule of law and fundamental rights can only be achieved if all political levels work together, are appropriately networked and play their part, based on their competences and responsibilities, and if they coordinate their various contributions. In many areas, there is a growing awareness that ‘evidence-based’ and ‘place-based’ policy is necessary in order to achieve better results. This, of course, also applies to the protection of fundamental rights. Strengthening these rights has a positive impact on social and economic development. Taking decisions at a level as close as possible to the general public strengthens people's trust both in each other and in the community in which they live;












13.


is struck by the extent to which, in just the last few years, EU discourse on fundamental rights and strengthening the rule of law has latched onto the paradigm of MLG. Furthermore, the operational principles set out in our follow-up opinion in 2012, in the scoreboard we developed and, of course, in the Charter for MLG, are also key tools in translating this vision into operational terms;












14.


notes that the fundamental values championed by ‘Europe’ (not just the EU and the Council of Europe, but also the leading national traditions) relate not only to the democratic rule of law, but also to the policies pursued to give those values a real chance of becoming a reality. If this perspective is applied consistently, the position of local and regional authorities (LRAs) will be seen in a completely different light. Instead of simply being bodies that implement national (and European) legislation and policy measures (the top-down approach), they will be full stakeholders with the political responsibility of shaping an integrated policy, within a specified framework and taking account of local circumstances. This is not just about civil and political rights, but also about economic and social ones (education, employment, health, welfare and housing);












15.


points out that LRAs are the first authorities to encounter problems when fundamental rights are not properly implemented under national policy. They deal with individuals, groups or ‘categories’ who are the first affected by infringements of rule-of-law principles and restrictions of fundamental rights. One particular focus in this connection is safeguarding the universal fundamental rights of all their residents, independently of the rights and facilities that apply only to EU citizens;












16.


believes that fundamental rights, such as equal access to decent jobs and social emancipation, must therefore be systematically promoted by means of appropriate support measures. In this regard, LRAs — alongside national and European levels of government and civil society — are full partners in a strategic movement to make the social rule of law a reality;












17.


considers that concerns about possible violations of fundamental rights must be expanded to encompass a systematic political will to implement the rule of law in the European Union and its Member States in positive terms as well. There therefore needs to be a shift from a concept of the rule of law which is based solely on legal protection, towards a dynamic concept in which policy measures should be used to give fundamental rights concrete expression in society. This dimension has not been highlighted sufficiently by the Commission, which has been (excessively) cautious with regard to the ‘internal affairs’ of the Member States, and whose new policy framework seeks primarily to develop a more flexible alternative to a proper infringement procedure so that action can be taken at an early stage. The increasingly widely accepted principle of MLG could be a useful approach in this respect. The Commission's communication opens up the prospect of a proactive approach, not least in its reference to the Venice Commission; in order for this approach to be effective, however, it must involve the various levels of government and civil society in the state in question;












18.


sees LRAs as vital partners for European and national levels of government in working with civil society, not only to protect the modern rule-of-law principle, but also to work actively and strategically to shape it, via their own policy initiatives. This is the key challenge for all levels of governance. Parties that systematically opt out of this are infringing the Charter of Fundamental Rights and swimming against the European tide;












19.


feels that it is necessary to respect the essential role of LRAs in safeguarding fundamental rights in order to ensure that they are implemented more effectively, provided that this is always done in keeping with relevant customs or Constitutions;












20.


feels that LRAs should be given the opportunity to refer matters directly to the European Commission if they identify threats to the rule of law. The European Commission should set up appropriate mechanisms for this;












21.


takes the view that the protection of fundamental rights is not just a matter for the European Commission, but that the European Parliament should also be making an active contribution. It is necessary, in cases where there is an imminent threat to the rule of law, to provide the necessary parliamentary transparency at EU level, with the involvement of LRAs, as this will help with assessing the situation;












22.


notes, however, that a distinction can also be made between the horizontal and vertical dimensions at regional and even local level. The horizontal dimension relates to the interaction between public and private initiatives, for example with regard to socio-economic development and education, health and care facilities;












23.


notes that LRAs — or at least those with legislative competences — are directly responsible for implementing a number of fundamental rights, and have developed general policy guidelines to this end. In practical terms, this also applies to specific civil rights concerning protection of freedom of expression, association and action, participation in free and fair elections and, more generally, combating all forms of discrimination within people's local or regional community. In this sense, local and regional authorities are not just conduits for obvious violations of fundamental rights, but should also develop and implement their own specific guidelines for implementing these rights;












24.


notes that the EU's conventional approach is based on the assumption that our regions, cities and municipalities are populated by EU citizens, and that non-discrimination policy therefore focuses on the rights of citizens of other Member States. However, the sociological reality, at least in the bigger cities, is of course much more complex. The only way of achieving social integration is via forms of representative and participatory democracy as a platform for shared co-existence, safeguarding also the local historical and cultural heritage. Therefore, if we want to include all inhabitants, we also need to expand the definition of ‘citizenship’ (see the Council of Europe's White Paper on Intercultural Dialogue (2008)): ‘Citizenship, in the widest sense, is a right and indeed a responsibility to participate in the cultural, social and economic life and in public affairs of the community together with others’. Along the same lines, Professor Antonio Papisca refers to ‘nova civitas’;












25.


considers that the Strategic EU Framework on Fundamental Rights proposed by the FRA (EU Agency for Fundamental Rights) provides a basis for putting into practice the aforementioned connection between the horizontal and vertical dimensions, with a view to securing effective participation, cooperation and coordination. To this end, it should be ensured that the Fundamental Rights Agency is in a position to monitor compliance with the rule-of-law principle and respect for fundamental rights in the EU Member States, and to raise the alarm if necessary;












26.


feels that both the FRA and the Council of Europe serve to provide a permanent pool of expertise, particularly for LRAs;












27.


thinks that the concept of MLG should be explicitly taken as the starting point for the protection of fundamental rights;






Additional specific proposals










28.


feels that local and/or regional authorities should be encouraged to:






—


embed and safeguard fundamental rights and the rule of law in the activities of civil society organisations;










—


foster public debate on the importance of such issues and raise awareness of them;










—


strengthen the capabilities of all stakeholders, by means of training and support;










—


set up information points that the public can access directly;










—


put an alert system in place, perhaps in cooperation with a regional or local ombudsman;










—


on the basis of this monitoring, pass on information to other authorities;










—


follow up on the ‘smart cities’ experiment;
















29.


could examine whether the following proposals would contribute to the protection of the rule of law in the European Union:






—


setting up a task force to develop an open method of coordination (OMC);










—


setting up a reporting point for LRAs;










—


consider a general European awareness-raising campaign for LRAs in protecting the rule of law;










—


organising a conference on MLG in the protection of fundamental rights and promoting the implementation of the Charter in view to draw up an MLG Covenant between LRAs;










—


concluding a tripartite agreement with the Congress of the Council of Europe and the FRA, based on the strategic EU Framework on fundamental rights proposed by the latter.









Brussels, 12 February 2015.


The President of the European Committee of the Regions

Markku MARKKULA